Filed 6/29/17 P. v. Weldy CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY ORAN WELDY,

Defendant and Appellant.
D071365



(Super. Ct. No. SCE361619)

APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed.

Gregory Oran Weldy, in pro. per.; and Racquel Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Gregory Oran Weldy pleaded guilty to driving with a suspended license, which had resulted from a prior driving under the influence conviction (Veh. Code., § 14601.2, subd. (a)). A jury convicted him of driving under the influence of alcohol and having a measurable blood alcohol level in violation of Vehicle Code section 23152, subdivisions (a) and (b). The jury also found true allegations that in the commission of those offenses, Weldy had a blood alcohol concentration of 0.15 percent or more (Veh. Code, § 23578) and drove a vehicle 30 or more miles per hour over the speed limit (Veh. Code, § 23582, subd. (a)). Weldy admitted the offenses were raised to felonies under Vehicle Code section 23550.5. He also admitted four prison priors. The People dismissed a charge of evading an officer with reckless driving.
The trial court sentenced Weldy to a total term of seven years in prison, including three years for driving under the influence of alcohol and four consecutive years for the enhancements. Pursuant to Penal Code section 654, the court stayed the sentence for driving while having a measurable blood alcohol level. Lastly, on Weldy's conviction for driving with a suspended license, the court imposed a concurrent term of 180 days in jail, satisfied by time served.
Appointed appellate counsel filed a brief under Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We sent Weldy notice that his attorney had filed a Wende brief and provided Weldy with the opportunity to file a supplemental brief, which he has done. After an independent review, we discern no reasonably arguable appellate issues and affirm.
FACTUAL BACKGROUND
In June 2016, Weldy stopped at a border patrol checkpoint near Pine Valley on Interstate 8. The border patrol agent at the checkpoint smelled alcohol coming from Weldy's car. As the border patrol agent was questioning Weldy, Weldy began to drive away.
Another border patrol agent followed Weldy and observed him swerving and almost hitting two other vehicles. When the agent activated his emergency lights and sirens, Weldy accelerated. The agent estimated that Weldy was driving over 100 miles per hour. Weldy eventually stopped at a rest stop.
A California Highway Patrol officer performed a driving under the influence investigation on Weldy. Weldy was unable to perform certain field sobriety tests because of a prior surgery on his leg. However, based on tests Weldy did perform, the officer concluded Weldy was under the influence at the time the border patrol agent had stopped him. The officer arrested Weldy.
Approximately an hour and a half after the California Highway Patrol officer conducted field sobriety tests, Weldy took two breath tests. The results from breath tests showed Weldy had a blood alcohol concentration of 0.154 and 0.152. In March 2016, a criminalist with the San Diego County Sheriff's regional crime laboratory had calibrated the machine used to test Weldy's blood alcohol concentration. The machine had a 6.2 percent estimated uncertainty measurement, meaning the reading could vary by plus or minus 6.2 percent.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal but asks that this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): (1) whether the trial court properly found that pursuant to Vehicle Code section 23550.5, Weldy was ineligible for sentencing as outlined in Penal Code section 1170, subdivision (h)(5); (2) whether the jury could properly evaluate the margin of error necessary to establish reasonable doubt as to Weldy's blood alcohol concentration at the time of driving, despite the failure of Vehicle Code section 23578 to define the time frame in which Weldy's blood alcohol concentration was relevant for purposes of the enhancement; and (3) whether, as given, CALCRIM No. 3250 conformed to Vehicle Code section 23578 because the instruction required the jury to find Weldy's blood alcohol concentration was 0.15 percent or more "when he drove," whereas the statute does not reference a time period.
Weldy filed a brief on his own behalf. Without citing evidence, Weldy argues the border patrol agents used him as a diversion to let a shipment of drugs go through the checkpoint. He suggests the "diversion" explains differences in the agents' testimonies and the People's failure to present other witnesses who allegedly saw Weldy driving poorly.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel and the issues Weldy has presented, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Weldy on this appeal.
DISPOSITION
The judgment is affirmed.



HALLER, J.

WE CONCUR:




BENKE, Acting P. J.




AARON, J.